Marlon Carson v. Metropolitan Atlanta Rapid Transit Authority , 572 F. App'x 964 ( 2014 )


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  •               Case: 13-14902     Date Filed: 07/25/2014   Page: 1 of 14
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-14902
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:11-cv-02452-AT
    MARLON CARSON,
    LAMAR CLARK,
    Plaintiffs-Appellants,
    versus
    METROPOLITAN ATLANTA RAPID
    TRANSIT AUTHORITY (MARTA),
    BEVERLY SCOTT,
    individually and in her official capacity as
    the General Manager of MARTA, et al.,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (July 25, 2014)
    Case: 13-14902     Date Filed: 07/25/2014    Page: 2 of 14
    Before HULL, MARCUS, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Marlon Carson and Lamar Clark (collectively, “Plaintiffs”) jointly appeal
    from the district court’s grant of summary judgment in an employment racial
    discrimination and retaliation suit brought under Title VII of the Civil Rights Act
    of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The suit named as defendants
    the Plaintiffs’ employer, the Metropolitan Atlanta Rapid Transit Authority
    (“MARTA”), as well as the following MARTA officials in both their individual
    and official capacities: Beverly Scott, general manager; John M. Weber, director
    of rails and operations; Linda Lee, general superintendent; Richard Krisak,
    assistant general manager of rail operations; and Dwight Ferrell, chief operating
    officer (collectively, “Defendants”).
    The Plaintiffs’ complaint stemmed from their 2009 terminations from their
    positions with MARTA. Carson, an African-American who worked as a rail line
    supervisor, alleged that he had been fired for racially discriminatory and retaliatory
    purposes, under the pretext that he had violated MARTA rules by operating a train
    while off duty on September 17, 2009, among other misconduct. Clark, an
    African-American who worked as a rail superintendent, alleged that the
    Defendants fired him after he had objected to Carson’s treatment, under the pretext
    that Clark had failed to fully investigate Carson’s earlier alleged violations of
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    MARTA’s radio-operation policies and had forwarded to Carson, without
    authorization, an e-mail that contained the recordings of the radio transmissions
    being investigated.
    I. Racial Discrimination
    The Plaintiffs first argue that the district court erred in granting summary
    judgment in favor of the Defendants as to the Title VII and § 1981 claims of racial
    discrimination. They contend that the Defendants’ proffered legitimate,
    nondiscriminatory reasons for their terminations were contradictory and not
    credible, and therefore the claims should survive summary judgment.
    The Plaintiffs then proceed to list a number of alleged contradictions within
    the evidence. First, inconsistencies exist as to whether certain defendants had seen
    a letter written by an individual who had accused Weber of creating a hostile work
    environment. Second, the evidence included contradictory accounts as to the
    extent of the Defendants’ knowledge regarding Weber’s alleged discriminatory
    conduct. Third, contradictory evidence exists as to the manner in which MARTA
    investigated and reported Carson’s alleged rule violations. Fourth, the evidence
    shows an inconsistency regarding MARTA’s termination policies.
    Fifth, the Plaintiffs argue that the evidence presents contradictions as to
    whether Carson in fact violated MARTA’s rules and policies. Ferrell testified in a
    deposition that Carson was certified and capable of operating one of MARTA’s
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    trains, yet Carson’s termination letter stated otherwise. Additionally, Weber’s
    office assistant, Dawn Pope, stated in an affidavit that a member of the legal and
    human resource departments had told her that the Plaintiffs should not have been
    terminated because they had not disobeyed any rules. Weber also could not
    explain why Carson’s sanctions for violating MARTA’s rules far exceeded the
    required sanctions. Moreover, contradictions existed as to whether Carson had
    been cleared for duty by the time he operated a train on September 17, 2009.
    Sixth, the evidence suggests that Clark’s termination had been in error. An
    affidavit from MARTA employee Toya Kellum stated that she overheard Lee tell
    Clark to stop his investigation into Carson. Krisak later confirmed that, if Clark
    had been told to stop his investigation, such an instruction would have made a
    difference as to whether he should have been terminated.
    Finally, with regard to Clark’s claims of racial discrimination, the Plaintiffs
    argue that the district court failed to consider Weber’s “pattern and practice” of
    habitually treating African-American subordinates less favorably than white
    subordinates.
    We review the grant of summary judgment de novo. Rioux v. City of
    Atlanta, Ga., 
    520 F.3d 1269
    , 1274 (11th Cir. 2008). “When deciding whether
    summary judgment is appropriate, all evidence and reasonable factual inferences
    drawn therefrom are reviewed in a light most favorable to the non-moving party.”
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    Id. at 1341-42.
    Once the moving party meets its burden of production, “the
    nonmoving party must present evidence beyond the pleadings showing that a
    reasonable jury could find in its favor.” Shiver v. Chertoff, 
    549 F.3d 1342
    , 1343
    (11th Cir. 2008) (quotation omitted). A mere ‘scintilla’ of evidence supporting the
    opposing party’s position will not suffice; there must be enough of a showing that
    the jury could reasonably find for that party. Brooks v. Cnty. Comm'n of Jefferson
    Cnty., 
    446 F.3d 1160
    , 1162 (11th Cir. 2006) (quotation omitted).
    Title VII makes it illegal for an employer “to discriminate against any
    individual with respect to his compensation, terms, conditions, or privileges of
    employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).
    Likewise, under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . .
    to make and enforce contracts . . . as is enjoyed by white citizens,” which in an
    employment context means protection against discrimination based on race and
    color. 42 U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 
    161 F.3d 1318
    , 1330-34 (11th Cir. 1998). Allegations of racial discrimination brought under
    Title VII and § 1981 are analyzed using the same evidentiary requirements and
    analytical framework. See 
    Standard, 161 F.3d at 1330
    .
    Because the Plaintiffs concede that they relied upon circumstantial evidence,
    the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
    
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
    (1973), is applicable to their race
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    discrimination claims. Chapman v. AI Transp., 
    229 F.3d 1012
    , 1024 (11th Cir.
    2000) (en banc) (discussing an ADEA claim).
    Under McDonnell Douglas, a plaintiff must first establish, by a
    preponderance of the evidence, a prima facie case of discrimination. McDonnell
    
    Douglas, 411 U.S. at 802
    , 93 S.Ct. at 1824. To prevail on a claim for racial
    discrimination under Title VII based on circumstantial evidence, an employee may
    show that: (1) he was a member of a protected class; (2) he suffered an adverse
    employment action; (3) he was qualified for the position; and (4) he was replaced
    by a person outside of his protected class or was treated less favorably than a
    similarly situated individual outside of his protected class. Maynard v. Bd. of
    Regents, 
    342 F.3d 1281
    , 1289 (11th Cir. 2003).
    If the plaintiff successfully demonstrates a prima facie case, the burden then
    shifts to the employer to produce evidence that its action was taken for a
    legitimate, non-discriminatory reason. McDonnell 
    Douglas, 411 U.S. at 802
    -03,
    93 S.Ct. at 1824. In the third step of the analysis, the plaintiff must show that the
    employer’s proffered reason really is a pretext for unlawful discrimination. 
    Id. at 804,
    93 S.Ct. at 1825.
    The inquiry into pretext requires us to view all of the evidence and
    “determine whether the plaintiff has cast sufficient doubt on the defendant’s
    proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude
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    that the employer’s proffered legitimate reasons were not what actually motivated
    its conduct.” Combs v. Plantation Patterns, 
    106 F.3d 1519
    , 1538 (11th Cir. 1997)
    (citation omitted). Such evidence must demonstrate “weaknesses, implausibilities,
    inconsistences, incoherencies, or contradictions in the employer’s proffered
    legitimate reasons for its action that a reasonable factfinder could find them
    unworthy of credence.” 
    Id. (quotation omitted).
    A plaintiff may not establish
    pretext simply by questioning the wisdom of the employer’s reason. 
    Id. at 1543.
    Instead, he must meet the employer’s reason ‟head on” and rebut it. Wilson v. B/E
    Aerospace, Inc., 
    376 F.3d 1079
    , 1088 (11th Cir. 2004).
    A reason is not pretext for discrimination “‘unless it is shown both that the
    reason was false, and that discrimination was the real reason.’” 
    Brooks, 446 F.3d at 1163
    (quoting St. Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 515, 
    113 S. Ct. 2742
    , 2752, 
    125 L. Ed. 2d 407
    (1993)). An employee may do that “either directly
    by persuading the court that a discriminatory reason more likely motivated the
    employer or indirectly by showing that the employer’s proffered explanation is
    unworthy of credence.” Jackson v. Ala. State Tenure Comm., 
    405 F.3d 1276
    , 1289
    (11th Cir. 2005) (quotation omitted). Ultimately, our inquiry is limited to “whether
    the employer gave an honest explanation of its behavior.” 
    Chapman, 229 F.3d at 1030
    (quotation omitted).
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    A.    Carson’s Racial Discrimination Claims
    Here, in light of all the evidence, the district court did not err in concluding
    that the Plaintiffs failed to demonstrate pretext as to Carson’s discrimination
    claims. See McDonnell Douglas, 411 U.S. at 
    804, 93 S. Ct. at 1825
    ; 
    Combs, 106 F.3d at 1538
    . Although the Plaintiffs base their argument on a string of alleged
    contradictions in the evidence, a majority of these contradictions are irrelevant to
    whether Carson actually had violated MARTA rules and policies, and thus do not
    rebut head-on the proffered legitimate, nondiscriminatory reason for his
    termination. See 
    Wilson, 376 F.3d at 1088
    ; 
    Combs, 106 F.3d at 1538
    .
    The only identified inconsistencies that are relevant to the Defendants’
    reason for terminating Carson concern whether he in fact violated MARTA’s
    policies. However, none of these inconsistencies show that the proffered reason
    for his termination is unworthy of credence. See 
    Combs, 106 F.3d at 1538
    .
    Finally, even if the Plaintiffs had shown that the Defendants’ proffered reason for
    the termination had been false, they failed to establish that racial discrimination
    was the real reason for his firing. See 
    Brooks, 446 F.3d at 1163
    .
    B.     Clark’s Racial Discrimination Claim
    Here, the Plaintiffs have not challenged the district court’s conclusion that
    Clark failed to exhaust his administrative remedies with regard to the racial
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    discrimination claim brought under Title VII. Hence, any challenges to the grant
    of summary judgment on Clark’s discrimination claims are limited to the count
    brought under § 1981. See Sepulveda v. U.S. Att’y Gen., 
    401 F.3d 1226
    , 1228 n.2
    (11th Cir. 2005) (holding that a party abandons claims that he does not argue in his
    brief).
    As to the § 1981 discrimination claim, neither of the Plaintiffs’ arguments
    has merit. First, a “pattern and practice” claim only may be brought by the
    government or a class of private plaintiffs pursuant to Federal Rule of Civil
    Procedure 23(b)(2). See Davis v. Coca-Cola Bottling Co. Consol., 
    516 F.3d 955
    ,
    964-65 (11th Cir. 2008). Second, even if the Plaintiffs’ argument with regard to
    pretext has merit, the district court had determined that the Plaintiffs failed to
    establish a prima facie case of discrimination after failing to identify any similarly
    situated employees outside of Clark’s class who had received more favorable
    treatment. Thus, the Plaintiffs did not first meet their burden regarding a prima
    facie case, nor do they challenge that matter on appeal. McDonnell 
    Douglas, 411 U.S. at 802
    , 93 S.Ct. at 1824; 
    Maynard, 342 F.3d at 1289
    .
    II. Retaliation
    The Plaintiffs next argue that the district court erred in granting summary
    judgment as to their Title VII and § 1981 retaliation claims. Regarding Carson’s
    claims, the Plaintiffs contend that his complaints about Weber’s routine
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    discriminatory practices, as well as MARTA’s failure to address this
    discriminatory conduct, constituted what Carson would reasonably believe to be
    protected expression. Further, the court’s assumption that Carson’s termination
    had been too remote in time to his complaints is not supported by the record
    evidence. Also, an affidavit from MARTA employee Ethel Williams established
    that, after Carson had filed a 2004 complaint against Weber, Weber had stated that
    Carson would not advance any further than his current position at MARTA.
    Regarding Clark’s claims, the Plaintiffs argue that he had a good-faith belief that
    he was engaging in a statutorily protected activity when he declined to investigate
    or punish Carson, because that sanction exceeded MARTA’s rules and policies.
    Finally, the Plaintiffs argue that the Defendants’ proffered legitimate,
    nondiscriminatory reasons for their terminations were contradictory and not
    credible.1
    1
    The response brief submitted for this appeal asserts, among other arguments, that the
    Plaintiffs’ appeal should be dismissed for failure to pay the docketing fee. However, the docket
    sheets for both our clerk’s office and the district court indicate that on November 11, 2013, the
    Plaintiffs paid the required $508, which included the $450 docketing fee, the $5 filing fee, and a
    $53 returned-items fee for a prior insufficient payment. See 11th Cir. R. 3, I.O.P.; 28 U.S.C.
    § 1917. Accordingly, the Plaintiffs remain in compliance with Rule 3(e). See Fed.R.App.P. 3(e)
    (“Upon filing a notice of appeal, the appellant must pay the district clerk all required fees.”).
    Also, in their reply brief, the Plaintiffs request a default judgment against defendant
    MARTA, as well as MARTA’s exclusion from oral argument, because MARTA failed to timely
    file a response brief. The Plaintiffs contend that the submitted response brief came only from the
    defendants named as individuals, and did not include MARTA. Even assuming, arguendo, that
    MARTA did not join in the response brief, the request for a default ruling in the Plaintiffs’ favor
    is meritless, because the only punishment MARTA could receive is losing the opportunity to be
    heard on oral argument. See Fed.R.App.P. 31(c). Also, because we have decided this appeal
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    As noted above, we review the grant of summary judgment de novo. 
    Rioux, 520 F.3d at 1274
    . Title VII provides that “[i]t shall be an unlawful employment
    practice for an employer to discriminate against any of his employees . . . because
    he has opposed any practice made an unlawful employment practice by [Title VII],
    or because he has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see
    Thompson v. North American Stainless, LP, 562 U.S. __, ___, 
    131 S. Ct. 863
    , 867,
    
    178 L. Ed. 2d 694
    (2011). Section 1981 of Title 42 also encompasses retaliation
    claims by an employee. Chapter 7 Trustee v. Gate Gourmet, Inc., 
    683 F.3d 1249
    ,
    1257-58 (11th Cir. 2012) (citation omitted). A plaintiff seeking to bring a
    retaliation claim under either statute must first establish a prima facie case by
    showing that (1) he engaged in a statutorily protected activity; (2) he suffered a
    materially adverse action; and (3) there was a causal connection between the
    protected activity and the adverse action. 
    Id. at 1258
    (quotations omitted).
    To state a retaliation claim, the plaintiff need only show that he had a
    “reasonable belief” that an unlawful employment practice was occurring, and is not
    required to show that the employer actually engaged in an unlawful employment
    practice. Berman v. Orkin Exterminating Co., Inc., 
    160 F.3d 697
    , 702 (11th Cir.
    1998). A plaintiff also may establish causation by showing that the decision-
    without the aid of oral argument, the Plaintiffs’ request to exclude MARTA from oral argument
    is moot.
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    makers were “aware of the protected conduct, and that the protected activity and
    the adverse action were not wholly unrelated.” McCann v. Tillman, 
    526 F.3d 1370
    , 1376 (11th Cir. 2008) (quotations omitted). One way to do this is to
    demonstrate that there was close temporal proximity between the two events.
    Thomas v. Cooper Lighting, Inc., 
    506 F.3d 1361
    , 1364 (11th Cir. 2007). However,
    a delay of three to four months is too long, as a matter of law, to prove causation.
    Id.; see also Maniccia v. Brown, 
    171 F.3d 1364
    , 1370 (11th Cir. 1999) (concluding
    that “[t]he more than 15-month period that elapsed between Appellant’s grievance
    and the alleged adverse employment actions belies her assertion that the former
    caused the latter”).
    With regard to whether an employee has engaged in a statutorily protected
    activity, an employer may not retaliate against an employee because the employee
    “has opposed any practice made an unlawful employment practice by” Title VII.
    42 U.S.C. § 2000e-3(a). Similarly, an employer may not retaliate against an
    employee because the employee “has made a charge, testified, assisted, or
    participated in any manner in an investigation, proceeding, or hearing under this
    subchapter.” 
    Id. A complaint
    about an employment practice constitutes protected
    opposition only if the individual explicitly or implicitly communicates a belief that
    the practice constitutes unlawful employment discrimination. EEOC Compl. Man.
    (CCH) §§ 8-II-B(2) (2006); see also Fed. Express Corp. v. Holowecki, 
    552 U.S. 12
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    389, 399, 
    128 S. Ct. 1147
    , 1156, 
    170 L. Ed. 2d 10
    (2008) (stating that the EEOC
    manual reflects “a body of experience and informed judgment to which courts and
    litigants my properly resort for guidance”).
    A.     Carson’s Retaliation Claims
    Here, the district court did not err in granting summary judgment as to
    Carson’s Title VII and § 1981 claims of retaliation. The court correctly concluded
    that, while Carson did file an internal complaint against Weber in 2004, it was too
    temporally remote from Carson’s termination in 2009 to establish a causal nexus.
    See 
    Thomas, 506 F.3d at 1364
    .
    B.    Clark’s Retaliation Claim
    As with the racial discrimination claims, the Defendants have not challenged
    the district court’s conclusion that Clark failed to exhaust his administrative
    remedies with regard to the retaliation claim brought under Title VII. Hence, any
    challenges to the rulings on Clark’s retaliation claims are limited to the count
    brought under § 1981. See 
    Sepulveda, 401 F.3d at 1228
    n.2.
    As to Clark’s § 1981 retaliation claim, the district court did not err in
    granting summary judgment. Nothing in the record indicates that Clark either
    halted his investigation into Carson’s alleged violations of radio-transmission
    policies, or forwarded the e-mail to Carson related to that investigation, in an effort
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    to oppose MARTA’s unlawful employment practices. See 42 U.S.C. § 2000e-3(a);
    Gate 
    Gourmet, 683 F.3d at 1258
    .
    III. Conclusion
    For the reasons stated above, the district court did not err in granting
    summary judgment as to all claims brought by the Plaintiffs, and we affirm.
    AFFIRMED. 2
    2
    Appellees’ Motion to File Appendix Out of Time is DENIED.
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